COMPARING THE E-1 and E-2 VISAS TO OTHER WORK AND BUSINESS VISA PROGRAMS
As in many countries, visa programs in the United States can appear confusing. They have not been codified in a coherent and logical way. Rather, they represent the attempts of different legislatures to deal with specific problems in different ways at different times.
The purpose of this page is to present and summarize the most common visa programs that permit you to engage in remunerative or commercial activities in the United States.
Before starting with the actual comparisons, here are some of the questions you might be considering:
1. Will you personally control the visa application or process?
This is important because no matter how appealing a certain visa might be, the application may be in the hands of an entity over which you have no control or influence. Most visas that permit remunerative or commercial activities require a third party, usually an employer in the United States, or other sponsoring organization, not only to initiate the application process, but to perform key requirements, such as labor certification.
The E-1 and E-2 Treaty Visas do not require the participation of any third party. You control the entire process.
2. Will you control your business or work activities in the U.S (boss or employee)?
Most visas will place you in the position of an employee of the petitioning employer, or at least place you under the supervision of a sponsoring organization such as a university or hospital. That is not necessarily a bad thing. But, as is the case in any employment or supervised situation, your activities must comply with the terms and conditions of your contract or undertaking, including the nature, scope, compensation, and location of your work. Obviously, employment does not encompass ownership or control of a business.
The E-1 and E-2 Treaty Visas are the opposite. In fact, if you do use your E-1 or E-2 visa to come to the United States, you must come in order to control or direct your own enterprise.
3. Will your application depend on whether other people have applied for the same visa?
It is the norm for work-related visas that only so many are issued each year (quotas), or are issued only after other visa categories have been filled or closed (preferences). Also, certain visa categories are dominated by citizens of a particular country or countries (H-1 India, H-2 Mexico, EB-5 China). These factors mean that your visa may not be issued for several years.
The E-1 and E-2 Treaty Visas are not subject to any quotas or preferences. And neither visa is dominated by citizens of any particular country.
4. How long will you be permitted to do these activities in the U.S?
Most work visas assume that you are filling a temporary shortage in the American work force, and their duration, and opportunity for renewal, is iimited accordingly.
The E-1 and E-2 Treaty Visas are generally considered to have the longest duration of any comparable visa, and to be renewable as long as the business operated by the visa holder remains viable.
Summarizing the major U.S visa programs for work or doing business
As you review these categories, please keep in mind the following:
–There are several other visas that contemplate doing some kind of work in the United States, for example, performing as a professional athlete, a diplomat, a NATO trainee, etc. We have chosen those with the greatest general interest to our readers.
–Where possible, we have described the number of visas actually issued, and in some cases the countries to whose citizens they are most often issued, to give you a better idea of what you might expect if you applied. We have chosen the statistical year 2019, because of the effects of the covid pandemic upon statistics in subsequent years.
–We are not counting the B business visa as a true work or business visa, because the duration and scope of business activities is greatly curtailed.
H Visa
Temporary employment
This is by far the visa used most often for temporary employment. The visa focuses on bringing workers into the United States in order to fill temporary labor shortages.
619,305 H visas were issued in 2019. Over 80% of this total were issued to citizens of only two countries, India, 237,839, mostly in the “skilled” sub-category (possibly due to a large number of persons with advanced degrees); and Mexico, 266,357, mostly in the “unskilled” sub-category (due to its geographical proximity to the U.S..).
The H visa is divided between skilled or specialty employment (H-1) and unskilled (H-2):
H-1B
This sub-category is for employment in a specialty occupation requiring a bachelor’s degree or foreign equivalent. It may require professional licensing if required by the state of residence (physician, architect).
Note, there is a separate visa category (H-1A) for citizens of Chile and Singapore, pursuant to free trade agreements.
H-2A
Seasonal or temporary agricultural workers from designated countries.
H-2B
Same as H-2A, but for non-agricultural workers.
J Visa
Exchange Visitor
The J visa is given to people accepted into visitor exchange programs in many fields, ranging from camp counselors and au pairs, to physicians and research scholars, for which work they may be remunerated. However, the main purpose of the program is to promote cultural exchange and contact with American society, not employment. About 90% of visa recipients are under the age of 30. Interestingly, the top two recipient countries are China (research scholars) and the United Kingdom (camp counselors).
391,561 J visas were issued in 2019.
L Visa
Intra-company transferee
L visas allow international organizations to send their executive and managerial personnel (L-1A) or personnel with specialized knowledge (L-1B) to the United States for a limited period, to open a new office, or work in an existing office.
The process of sending a manager or executive to open a new office may appear very similar to the opening of a new office by a treaty trader or investor. In general, there are reasons to prefer a treaty visa over the L, including the almost perpetual number of times the treaty visa may be renewed. In contrast, the duration of the L-1 visa is limited, see below.
157,708 L visas were issued in 2019. The citizens of some large countries, like Brazil, may receive a large number of L visas because its citizens are not eligible for Treaty Visas, due to the absence of the pertinent treaty between their governments and the United States.
TN
NAFTA professionals
The North American Free Trade Agreement (previously called NAFTA) created special economic and trade relationships for the United States, Canada and Mexico. The TN nonimmigrant classification permits qualified Canadian and Mexican citizens — normally professionals — to seek temporary entry into the United States.
31,439 were issued in 2019 to Mexicans. Very few were issued to Canadians.
O Visa
Extraordinary ability
For persons with extraordinary ability or achievement in the sciences, arts, education, business or athletics, demonstrated by sustained national or international acclaim, to work in their field of expertise.
31,831 O visas were issued in 2019.
Permanent visas based on employment (EB-1 through EB-5)
Approximately 140,000 immigrant visas are available each fiscal year for noncitizens (and their spouses and children) who seek to immigrate based on their job skills — in contrast to family relationships.
EB-1
First Preference
The candidate must fall within one of the following groups:
1. Extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim.
Think of this as a permanent version of the O visa.
2. International recognition for outstanding achievements in a particular academic field, with at least 3 years experience in teaching or research in that academic area; and entering the United States in order to pursue tenure or tenure track teaching or a comparable research position at a university, institution of higher education, or private employer. A prior offer of employment is required. No labor certification is required.
3. Certain managerial and executive personnel. You must have been employed outside the United States for at least 1 year in the 3 years preceding the petition or the most recent lawful nonimmigrant admission if you are already working for the U.S. petitioning employer.
A permanent version of the L visa.
Only 2,234 EB-1 visas were granted in 2019.
EB-2
2nd Preference
For holders of advanced degrees and those with exceptional abilities, perhaps of a lower status than those required for the EB-1 visa.
3,497 EB-2 visas were issued in the world in 2019.
EB-3
3rd Preference
For “skilled,” “professional,” and “other” workers.
Only 1,345 EB-3 visas were issued in 2019.
EB-4
4th Preference
This preference is reserved for “special immigrants,” which includes certain religious workers, employees of U.S. foreign service posts, retired employees of international organizations, noncitizen minors who are wards of courts in the United States, and other classes of noncitizens.
Just 1,901 EB-4 visas were issued in 2019.
EB-5
5th Preference
This preference is reserved for business investors who invest $1.8 million or $900,000 (if the investment is made in a “targeted employment area”) in a new commercial enterprise that employs at least 10 full-time U.S. workers.
Please note that the minimum investment numbers are continually reset.
The EB-5 might be considered a permanent version of the E-2 Treaty Investor visa, but with certain advantages and disadvantages. The advantage is that the holder is given a path to permanent residency in the U.S., where he or she can engage in most of the same economic activities available to citizens.
Among its disadvantages are that it establishes a minimum investment amount, which changes often but is roughly $1 million. Another disadvantage is that it can be subject to very long waiting periods, for two reasons. It is a fifth preference visa, meaning that its issuance is behind four higher tiers in the work visa categories. In any given year, there may be ten times more applications than visas issued. Also, the fact that citizens of the People’s Republic of China are not eligible for the E-2 Treaty Visa — for lack of the treaty between those two countries — has probably resulted in their domination of applications for the EB-5 visa, making inclusion more difficult for citizens of other countries.
7,889 of such visas were issued in 2019, with over 95% assigned to the “regional target areas” sub-category.
Treaty Visas
E-1
Also called the “Treaty Traders Visa.” For nationals of over 80 countries with the relevant treaty with the United States, that permits the owners, directors and key employees of trading companies to come and live in the U.S., along with their spouses and minor children. Whilst it is a temporary visa, it is considered to be renewable as long as the trading business remains in operation. To be such a company, you must demonstrate that more than half of your international trading revenues arise from direct sales between the treaty country and the United States.
E-2
Also called the “Treaty Investors Visa.” For nationals of over 80 countries with the relevant treaty with the United States, that permits the owners, directors and key employees of an investor in an active U.S. business to come and live in the U.S., along with their spouses and minor children. Whilst it is a temporary visa, it is considered to be renewable as long as the U.S. business remains in operation. Whilst the investment must be “substantial,” there are no quantifiable minimums, as in the case of the EB-5 visa. (It is generally thought that the minimum is $100,000.)
E-3
For citizens of Australia. Because of substantial differences with the other two sub-categories of Treaty Visas, you should not assume that the statements made on this page, comparing the Treaty Visas with other visa programs, apply to the E-3.
Comparison on the basis of the most relevant topics
#1. Does the visa allow you to bring or establish, and manage and control, your own business in the United States? (Boss or employee?)
Visa Type
Short Answer
Comment
H
No.
The H visa applies exclusively to contracts of employment between the petitioning employer and the visa holder.
J
No.
While allowing some remunerative work, this visa is designed for cultural exchange rather than employment. The scope, duration, and location of work, if any, is set by the sponsoring organization.
L
Yes.
It is possible that you are the manager who is opening a new U.S. office, and that you have some ownership of the same company that is employing you. In this sense, it bears some resemblance to a treaty trader or treaty investor who is opening a new office in the U.S.
There remain differences between this use of the L Visa and the treaty visas. As the employee-manager opening the new office, your total permitted time in the U.S. is probably three years, including extensions. As a treaty trader or investor, your time in the U.S. can be effectively extended as long as the trader or investor company remains in operation.
TN
No.
As a NAFTA professional, you must be employed by a sponsoring organization or company in the U.S. Sef-employment is not permitted.
O
No.
While the visa holder may not be an employee in the conventional sense, he or she comes to the United States in coordination with a U.S. employer or U.S. agent representing a foreign employer, and under the terms of a detailed itinerary. His or her activities may not go beyond those for which the visa was issued.
EB-1
Extra-ordinary
ability
No.
While the visa holder may not be an employee in the conventional sense, he or she comes to the United States in coordination with a U.S. employer or U.S. agent representing a foreign employer, and under the terms of a detailed itinerary. His or her activities may not go beyond those for which the visa was issued.
EB-1
Outstanding professor or researcher
No
You must work at the university or similar institution with whom you will affiliate.
EB-1
Mutlinational executive or manager
No
You must be employed by the multinational company for which you will be working.
EB-2
EB-3
EB-4
No
You must work with the employer who is supporting your visa appllication.
EB-5
Yes
It is possible. However, in practice, the great majority of EB-5 visas involve a U.S.-based intermediary who pools the investments of more than one EB-5 visa holder, in order to finance a large project usually involving a public-private partnership.
Some, and certainly not all, of these collaborations have involved allegations of ethical or legal misconduct.
The Treaty Visas
Yes
The Treaty Visas require that the treaty trader or investor, as the case may be, be the entity that conducts business in the U.S. It then allows the owners, managers and key employees of such entity to come to the U.S. to carry out its business operations,
#2. Does this Visa require someone else to participate with you in the visa application process?
Visa Type
Short Answer
Comment
H
Yes
Definitely. In fact, your prospective U.S. employer, and/or a recruitment agency it works with, initiates the process and handles most of its most important aspects, such as labor certification.
J
Yes.
This is usually a private organization, acting professionally on behalf of the ultimate employer in the U..S.. to whom you will apply. If you ever came to the U.S. as a student, under an F visa, you will have some experience with this process.
See following exception for J-1 visa.
J-1
No
L
Yes.
The multinational company that employes you.
TN
Nafta
Yes
Your prospective employer in the U.S. will be a primary participant in your application.
O
Yes
A U.S. employer or agent that is responsible for arranging your activities and itinerary in the U.S.
EB-1
EB-2
EB-3
EB-4
Yes.
Either your prospective U.S. employer or agent will be involved in the process.
EB-5
Yes or No
This depends on whether your investment in the U.S. is being channeled through a U.S. intermediary and combined with the investments of other EB-5 visa holders in order to finance a project. The majority of EB-5 investments have followed this path.
Treaty Visas
No
There is no U.S.-based or other entity that initiates or even participates in your application.
#3. Is this visa subject to quotas, preferences, numerical limitations, etc?
Visa Type
Short Answer
Comment
H1-B
Yes
Currently, 65,000, subject to exceptions and waivers for persons with advanced degree or needed skills.
H2-A
Yes
H2-B
Yes
Currently, 66,000.
J
L
TN
O
No.
EB-1
EB-2
EB-3
EB-4
Yes.
All employment-based permanent visas are limited to a certain number each year, which are then allocated in accordance with the five preference categories (EB-1 to EB-5).
Treaty Visas
No
#4. Will you be required to demonstrate that your work in the U.S. will not harm U.S. workers?
Visa Type
Short Answer
Comment
H
Yes
J, L, TN, O
No.
EB-1
No.
EB-2
EB-3
Yes
EB-5
No
Treaty Visas
No
The concept of the treaty visa is that your business is adding to the U.S. economy.
#5. What is the usual period of stay, including extensions?
Visa Type
Initial term
Extensions
H1-A
Up to 3 years
Generally, the entire stay may not exceed 6 years.
H-2A
H-2B
Set out in DOL certification
The labor certification issued by the Department of Labor will usually set out the initial term. The entire stay, including possible extensions, may not exceed three years. If the worker returns to his or her country for at least 90 days, he or she may reapply.
L to open new office
Up to 1 year
Extensions may be granted in two-year increments, but the entire stay may not exceed 7 years.
L other
Up to 3 years
Extensions may be granted in two-year increments, but the entire stay may not exceed 7 years.
O
Up to 3 years
Additional extensions of up to one year may be granted discretionally if needed to complete the original itinerary.
TN
Up to 3 years
If you wish to remain in the United States beyond your initial period of stay without first departing from the United States, you must seek an extension of stay. If you are in the United States, your employer may file Form I-129 on your behalf.
Alternatively, you may depart from the United States before the date your status expires, and then, once abroad, you may apply at a CBP-designated U.S. port of entry or at a designated pre-clearance/pre-flight inspection station using the same application and documentation procedures required at the time of your initial application for admission as a TN nonimmigrant.
EB-1
EB-2
EB-3
EB-4
EB-5
Non applicable
These are permanent visas.
Treaty Visas
Initial term depends on country. Usually 3 to five years.
The Treaty Visas are unique among all temporary visas. In practice, renewals are granted perpetually, as long as the business remains in operation.
The list includes most countries in the world and is found here. In practice, the great majority of these visas go to citizens of Mexico, due to its proximity to the U.S.
#6. Is the visa limited to persons of a certain country?
Generally, visa programs are not limited to nationals of a certain country. The following are some exceptions.
Visa Type
H-2A
H-2B
Unskilled labor
TN
NAFTA professionals
Mexico and Canada.
Treaty Visas
Limited to citizens of more than 80 countries in the world with treaties of friendship, commerce and navigation with the U.S.
The SIGNET Law Firm
We are dedicated to helping foreign business invest and operate in the United States successfully. As part of our services, we specialize in helping our clients procure the E-1 and E-2 visas, which enable them to live in the U.S. while they manage and operate their businesses.
Thank you.
We hope you have found this information useful. If you would like to speak with us, we are available.